ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

Although the First
Amendments Religion Clauses have not been read to
mandate absolute governmental neutrality toward religion, cf.
Sherbert v. Verner, 374 U.S. 398 (1963),
the Establishment Clause requires neutrality as a general rule,
e.g., Everson v. Board of Ed. of Ewing, 330 U.S. 1, 18 (1947),
and thus expresses Madisons condemnation of
employ[ing] Religion as an engine of Civil policy,
Memorial and Remonstrance Against Religious Assessments, 2
Writings of James Madison 183, 187 (G. Hunt ed. 1901). A
governmental display of an obviously religious text cannot be
squared with neutrality, except in a setting that plausibly
indicates that the statement is not placed in view with a
predominant purpose on the part of government either to adopt
the religious message or to urge its acceptance by others.

Until today, only one of our cases
addressed the constitutionality of posting the Ten
Commandments, Stone v. Graham, 449 U.S. 39,
4142 (1980) (per curiam). A Kentucky statute
required posting the Commandments on the walls of public school
classrooms, and the Court described the States purpose
(relevant under the tripartite test laid out in Lemon v.
Kurtzman, 403
U.S. 602 (1971)) as being at odds with the obligation of
religious neutrality.

The pre-eminent purpose for posting the Ten Commandments
on schoolroom walls is plainly religious in nature. The Ten
Commandments are undeniably a sacred text in the Jewish and
Christian faiths, and no legislative recitation of a supposed
secular purpose can blind us to that fact. The Commandments do
not confine themselves to arguably secular matters, such as
honoring ones parents, killing or murder, adultery,
stealing, false witness, and covetousness. Rather, the first
part of the Commandments concerns the religious duties of
believers: worshipping the Lord God alone, avoiding idolatry,
not using the Lords name in vain, and observing the
Sabbath Day. 449 U. S, at 4142 (footnote and
citations omitted).

What these observations underscore are the simple realities
that the Ten Commandments constitute a religious statement,
that their message is inherently religious, and that the
purpose of singling them out in a display is clearly the
same.1

Thus, a pedestrian happening upon
the monument at issue here needs no training in religious
doctrine to realize that the statement of the Commandments,
quoting God himself, proclaims that the will of the divine
being is the source of obligation to obey the rules, including
the facially secular ones. In this case, moreover, the text is
presented to give particular prominence to the
Commandments first sectarian reference, I am the
Lord thy God. That proclamation is centered on the stone
and written in slightly larger letters than the subsequent
recitation. To ensure that the religious nature of the
monument is clear to even the most casual passerby, the word
Lord appears in all capital letters (as does the
word am), so that the most eye-catching segment of
the quotation is the declaration I AM the LORD thy
God. App. to Pet. for Cert. 21. What follows, of
course, are the rules against other gods, graven images, vain
swearing, and Sabbath breaking. And the full text of the fifth
Commandment puts forward filial respect as a condition of long
life in the land which the Lord they God giveth
thee. See ibid. These [w]ords make
[the] religious meaning unmistakably clear.
County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter,492 U.S. 573, 598
(1989).

To drive the religious point home,
and identify the message as religious to any viewer who failed
to read the text, the engraved quotation is framed by religious
symbols: two tablets with what appears to be ancient script on
them, two Stars of David, and the superimposed Greek letters
Chi and Rho as the familiar monogram of Christ. Nothing on the
monument, in fact, detracts from its religious nature,2 see ibid.
(Here, unlike in Lynch [v. Donnelly, 465 U.S. 668 (1984)],
nothing in the context of the display detracts from the
cr&ccaron;ches religious message), and the
plurality does not suggest otherwise. It would therefore be
difficult to miss the point that the government of Texas3 is telling
everyone who sees the monument to live up to a moral code
because God requires it, with both code and conception of God
being rightly understood as the inheritances specifically of
Jews and Christians. And it is likewise unsurprising that the
District Court expressly rejected Texass argument that
the States purpose in placing the monument on the capitol
grounds was related to the Commandments role as
part of the foundation of modern secular law in Texas and
elsewhere. App. to Pet. for Cert. 32.

The monuments presentation of
the Commandments with religious text emphasized and enhanced
stands in contrast to any number of perfectly constitutional
depictions of them, the frieze of our own Courtroom providing a
good example, where the figure of Moses stands among
historys great lawgivers. While Moses holds the tablets
of the Commandments showing some Hebrew text, no one looking at
the lines of figures in marble relief is likely to see a
religious purpose behind the assemblage or take away a
religious message from it. Only one other depiction represents
a religious leader, and the historical personages are mixed
with symbols of moral and intellectual abstractions like Equity
and Authority. See County of Allegheny, supra,
at 652 (Stevens, J., concurring in part and dissenting in
part). Since Moses enjoys no especial prominence on the
frieze, viewers can readily take him to be there as a lawgiver
in the company of other lawgivers; and the viewers may just as
naturally see the tablets of the Commandments (showing the
later ones, forbidding things like killing and theft, but
without the divine preface) as background from which the
concept of law emerged, ultimately having a secular influence
in the history of the Nation. Government may, of course,
constitutionally call attention to this influence, and may post
displays or erect monuments recounting this aspect of our
history no less than any other, so long as there is a context
and that context is historical. Hence, a display of the
Commandments accompanied by an exposition of how they have
influenced modern law would most likely be constitutionally
unobjectionable.4 And the Decalogue could, as Stone
suggested, be integrated constitutionally into a course of
study in public schools. Stone, 449 U.S., at
42.5

Texas seeks to take advantage of
the recognition that visual symbol and written text can
manifest a secular purpose in secular company, when it argues
that its monument (like Moses in the frieze) is not alone and
ought to be viewed as only 1 among 17 placed on the 22 acres
surrounding the state capitol. Texas, indeed, says that the
Capitol grounds are like a museum for a collection of exhibits,
the kind of setting that several Members of the Court have said
can render the exhibition of religious artifacts permissible,
even though in other circumstances their display would be seen
as meant to convey a religious message forbidden to the State.
County of Allegheny, 492 U.S., at 595 (opinion of
Blackmun, J., joined by Stevens, J.); Lynch v.
Donnelly, 465
U.S. 668, 692 (1984) (OConnor, J., concurring). So,
for example, the Government of the United States does not
violate the Establishment Clause by hanging Giottos
Madonna on the wall of the National Gallery.

But 17 monuments with no common
appearance, history, or esthetic role scattered over 22 acres
is not a museum, and anyone strolling around the lawn would
surely take each memorial on its own terms without any dawning
sense that some purpose held the miscellany together more
coherently than fortuity and the edge of the grass. One
monument expresses admiration for pioneer women. One pays
respect to the fighters of World War II. And one quotes the
God of Abraham whose command is the sanction for moral law.
The themes are individual grit, patriotic courage, and God as
the source of Jewish and Christian morality; there is no common
denominator. In like circumstances, we rejected an argument
similar to the States, noting in County of
Allegheny that [t]he presence of Santas or other
Christmas decorations elsewhere in the . . . [c]ourthouse, and
of the nearby gallery forum, fail to negate the
[cr&ccaron;ches] endorsement effect. . . . The record
demonstrates . . . that the cr&ccaron;che, with its floral
frame, was its own display distinct from any other decorations
or exhibitions in the building. 492 U.S., at
598599, n. 48.6

If the States museum argument
does nothing to blunt the religious message and manifestly
religious purpose behind it, neither does the pluralitys
reliance on generalities culled from cases factually different
from this one. E.g., ante, at 8 (We have
acknowledged, for example, that religion has been closely
identified with our history and government, School
Dist. of Abington Township v. Schempp, 374 U.S., at
212, and that [t]he history of man is inseparable from
the history of religion, Engel v. Vitale,370 U.S. 421, 434
(1962)). In fact, it is not until the end of its opinion
that the plurality turns to the relevant precedent of
Stone, a case actually dealing with a display of the
Decalogue.

When the plurality finally does
confront Stone, it tries to avoid the cases
obvious applicability by limiting its holding to the classroom
setting. The plurality claims to find authority for limiting
Stones reach this way in the opinions
citations of two school-prayer cases, School Dist. of
Abington Township v. Schempp,374 U.S. 203 (1963),
and Engel v. Vitale,370 U.S. 421 (1962).
But Stone relied on those cases for widely applicable
notions, not for any concept specific to schools. The opinion
quoted Schemppsstatements that it is
no defense to urge that the religious practices here may be
relatively minor encroachments on the First
Amendment, Schempp, supra, at 225, quoted in
Stone, 449 U.S., at 42; andthat the
place of the Bible as an instrument of religion cannot be
gainsaid, Schempp, supra, at 224, quoted in
Stone, supra, at 41, n. 3. And Engel was
cited to support the proposition that the State was responsible
for displaying the Commandments, even though their framed,
printed texts were bought with private subscriptions.
Stone, supra, at 42 ([T]he mere posting of
the [Commandments] under the auspices of the legislature
provides the official support of the State Government that the
Establishment Clause prohibits (omission and internal
quotation marks omitted)). Thus, the schoolroom was beside the
point of the citations, and that is presumably why the
Stone Court failed to discuss the educational setting,
as other opinions had done when school was significant.
E.g., Edwards v. Aguillard,482 U.S. 578, 584
(1987). Stone did not, for example, speak of
childrens impressionability or their captivity as an
audience in a school class. In fact, Stones
reasoning reached the classroom only in noting the lack of
support for the claim that the State had brought the
Commandments into schools in order to integrat[e] [them]
into the school curriculum. 449 U.S., at 42.
Accordingly, our numerous prior discussions of Stone
have never treated its holding as restricted to the
classroom.7

Nor can the plurality deflect
Stone by calling the Texas monument a far more
passive use of [the Decalogue] than was the case in
Stone, where the text confronted elementary school
students every day. Ante, at 12. Placing a
monument on the ground is not more passive than
hanging a sheet of paper on a wall when both contain the same
text to be read by anyone who looks at it. The problem in
Stone was simply that the State was putting the
Commandments there to be seen, just as the monuments
inscription is there for those who walk by it.

To be sure, Kentuckys
compulsory-education law meant that the schoolchildren were
forced to see the display every day, whereas many see the
monument by choice, and those who customarily walk the Capitol
grounds can presumably avoid it if they choose. But in my
judgment (and under our often inexact Establishment Clause
jurisprudence, such matters often boil down to judgment, see
ante, at 34 (Breyer, J., concurring in judgment)),
this distinction should make no difference. The monument in
this case sits on the grounds of the Texas State Capitol.
There is something significant in the common term
statehouse to refer to a state capitol building: it
is the civic home of every one of the States citizens.
If neutrality in religion means something, any citizen should
be able to visit that civic home without having to confront
religious expressions clearly meant to convey an official
religious position that may be at odds with his own religion,
or with rejection of religion. See County of Allegheny,
492 U.S., at 626 (OConnor, J., concurring in part and
concurring in judgment) (I agree that the cr&ccaron;che
displayed on the Grand Staircase of the Allegheny County
Courthouse, the seat of county government, conveys a message to
nonadherents of Christianity that they are not full members of
the political community . The display of religious
symbols in public areas of core government buildings runs a
special risk of making religion relevant, in reality or public
perception, to status in the political community
(alteration and internal quotation marks omitted)).

Finally, though this too is a point
on which judgment will vary, I do not see a persuasive argument
for constitutionality in the pluralitys observation that
Van Ordens lawsuit comes [f]orty years after the
monuments erection . . . , ante, at 2, an
observation that echoes the States contention that one
fact cutting in its favor is that the monument stood
in Austin . . . for some forty years without generating
any controversy or litigation, Brief for Respondents 25.
It is not that I think the passage of time is necessarily
irrelevant in Establishment Clause analysis. We have approved
framing-era practices because they must originally have been
understood as constitutionally permissible, e.g.,
Marsh v. Chambers, 463 U.S. 783 (1983)
(legislative prayer), and we have recognized that Sunday laws
have grown recognizably secularover time,
McGowan v. Maryland,366 U.S. 420 (1961).
There is also an analogous argument, not yet evaluated, that
ritualistic religious expression can become so numbing over
time that its initial Establishment Clause violation becomes at
some point too diminished for notice. But I do not understand
any of these to be the States argument, which rather
seems to be that 40 years without a challenge shows that as a
factual matter the religious expression is too tepid to provoke
a serious reaction and constitute a violation. Perhaps, but
the writer of Exodus chapter 20 was not lukewarm, and other
explanations may do better in accounting for the late resort to
the courts. Suing a State over religion puts nothing in a
plaintiffs pocket and can take a great deal out, and even
with volunteer litigators to supply time and energy, the risk
of social ostracism can be powerfully deterrent. I doubt that
a slow walk to the courthouse, even one that took 40 years, is
much evidentiary help in applying the Establishment Clause.

I would reverse the judgment of the
Court of Appeals.

Notes

1. The clarity of the religious
manifestation in Stone was unaffected by the
States effort to obscure it: the Kentucky statute that
mandated posting the Commandments in classrooms also required
the addition to every posting of a notation reading,
[t]he secular application of the Ten Commandments is
clearly seen in its adoption as the fundamental legal code of
Western Civilization and the Common Law of the United
States. 449 U.S., at 3940, n. 1.
In the present case, the religious
purpose was evident on the partof the donating
organization. When the Fraternal Order of Eagles, the group
that gave the monument to the State of Texas, donated identical
monuments to other jurisdictions, it was seeking to impart a
religious message. See Adland v. Russ, 307 F.3d
471, 475 (CA6 2002) (quoting the Eagles statement in a
letter written to Kentucky when a monument was donated to that
Commonwealth: Most of todays younger generation
either have not seen the Ten Commandments or have not been
taught them. In our opinion the youth of today is in dire need
of learning the simple laws of God . . .). Accordingly,
it was not just the terms of the moral code, but the
proclamation that the terms of the code were enjoined by God,
that the Eagles put forward in the monuments they donated.

2. That the monument also surrounds the
text of the Commandments with various American symbols (notably
the U.S. flag and a bald eagle) only underscores the
impermissibility of Texass actions: by juxtaposing these
patriotic symbols with the Commandments and other religious
signs, the monument sends the message that being American means
being religious (and not just being religious but also
subscribing to the Commandments, i.e., practicing a
monotheistic religion).

3. There is no question that the State in
its own right is broadcasting the religious message. When
Texas accepted the monument from the Eagles, the state
legislature, aware that the Eagles for the past several
years have placed across the country . . . parchment plaques
and granite monoliths of the Ten Commandments . . . [in order]
to promote youth morality and help stop the alarming increase
in delinquency, resolved that the Fraternal Order
of the Eagles of the State of Texas be commended and
congratulated for its efforts and contributions in combating
juvenile delinquency throughout our nation. App. 97.
The State, then, expressly approved of the Eagles
proselytizing, which it made on its own.

4. For similar reasons, the other displays
of the Commandments that the plurality mentions, ante,
at 9, do not run afoul of the Establishment Clause. The
statues of Moses and St. Paul in the Main Reading Room of the
Library of Congress are 2 of 16 set in close proximity, statues
that represent men illustrious in the various forms of
thought and activity . The Library of
Congress: The Art and Architecture of the Thomas Jefferson
Building 127 (J. Cole and H. Reeds eds. 1997). Moses and St.
Paul represent religion, while the other 14 (a group that
includes Beethoven, Shakespeare, Michelangelo, Columbus, and
Plato) represent the nonreligious categories of philosophy,
art, history, commerce, science, law, and poetry. Ibid.
Similarly, the sculpture of the woman beside the Decalogue in
the Main Reading Room is one of 8 such figures
represent[ing] eight characteristic features of civilized
life and thought, the same 8 features (7 of them
nonreligious) that Moses, St. Paul, and the rest of the 16
statues represent. Id., at 125.
The inlay on the floor of the National
Archives Building is one of four such discs, the collective
theme of which is not religious. Rather, the discs
symbolize the various types of Government records that
were to come into the National Archive. Letter from
Judith A. Koucky, Archivist, Records Control Section to
Catherine Millard, Oct. 1, 2003 (on file with Clerk of the
Court). (The four categories are war and defense, history,
justice, and legislation. Each disc is paired with a winged
figure; the disc containing the depiction of the Commandments,
a depiction that, notably, omits the Commandments text,
is paired with a figure representing legislation.
Ibid.)
As for Mosess
prominen[t] featur[ing] in the Chamber of the United
States House of Representatives, ante, at 9
(plurality opinion), Moses is actually 1 of 23 portraits
encircling the House Chamber, each approximately the same size,
having no religious theme. The portraits depict men
noted in history for the part they played in the evolution of
what has become American law. Art in the United States
Capitol 282; House Doc. No. 94660 (1978). More
importantly for purposes of this case, each portrait consists
only of the subjects face; the Ten Commandments appear
nowhere in Mosess portrait.

5. Similarly permissible, though obviously
of a different character, are laws that can be traced back to
the Commandments (even the more religious ones) but are
currently supported by nonreligious considerations. See
McCreary County v. American Civil Liberties Union of
Ky.,post, at 10 (opinion of the Court) (noting that
in McGowan v. Maryland,366 U.S. 420 (1961),
the Court upheld Sunday closing laws on practical secular
grounds after finding that the government had forsaken the
religious purposes motivating centuries-old predecessor
laws).

6. It is true that the Commandments
monument is unlike the display of the Commandments considered
in the other Ten Commandments case we decide today, McCreary
County. There the Commandments were posted at the behest
of the county in the first instance, whereas the State of Texas
received the monument as a gift from the Eagles, which
apparently conceived of the donation at the suggestion of a
movie producer bent on promoting his commercial film on the Ten
Commandments, Books v. Elkhart, 235 F.3d 292,
294295 (CA7 2000), cert. denied, 532 U.S. 1058
(2001). But this distinction fails to neutralize the apparent
expression of governmental intent to promote a religious
message: although the nativity scene in Allegheny County
was donated by the Holy Name Society, we concluded that
[n]o viewer could reasonably think that [the scene]
occupies [its] location [at the seat of county government]
without the support and approval of the government.
County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U.S. 573,
599600 (1989).

7. In any event, the fact that we have
been, as the plurality says, particularly vigilant in
monitoring compliance with the Establishment Clause in
elementary and secondary schools, ante, at 11,
does not of course mean that anything goes outside the
schoolhouse. As cases like County of Allegheny and
Lynch v. Donnelly,465 U.S. 668 (1984),
illustrate, we have also closely scrutinized government
displays of religious symbols. And for reasons discussed in
the text, the Texas monument cannot survive even a relaxed
level of scrutiny.